Massachusetts wiretap law and interviews: the secrecy test

Massachusetts prohibits secretly recording a conversation unless every party has given prior authority. The statute, G.L. c. 272, § 99, defines interception as to "secretly hear, secretly record" a wire or oral communication, and its courts have read that word literally: what matters is whether the people being recorded knew. For interviewers that gives a clean rule. Tell the candidate, and everyone else on the call, that you are recording or transcribing before you start, and the recording is not secret. Skip the sentence and you are in the conduct the statute punishes with up to five years in state prison.

Recording across states? The consent checker compares Massachusetts with wherever you are.

What section 99 prohibits

The statute opens with a legislative finding that "the secret use of such devices by private individuals must be prohibited," and the definitions carry that through:

The secrecy test, from the cases

Two decisions of the Supreme Judicial Court explain how § 99 is read.

• No privacy requirement. In Commonwealth v. Hyde, 434 Mass. 594 (2001), a motorist secretly recorded his own traffic stop and argued that police officers doing their jobs have no expectation of privacy. The court disagreed: it said it "would render meaningless the Legislature's careful choice of words if we were to interpret 'secretly' as encompassing only those situations where an individual has a reasonable expectation of privacy," and affirmed the conviction.
• Actual knowledge. In Commonwealth v. Jackson, 370 Mass. 502 (1976), the court treated a recording as not secret where the person recorded had actual knowledge of it, which can be shown by clear and unequivocal objective signs that they knew.

Put together: in Massachusetts it does not help to argue that an interview was not private, and it does help to be able to show the candidate knew. A spoken notice at the start, captured on the recording along with the candidate's answer, shows both.

What this means for different interview formats

Because the definition of oral communication has no privacy element, Massachusetts also reaches situations other states would not: a hallway conversation after an onsite interview, a debrief in an open office, or a lunch with a candidate. If a device is capturing and someone in the conversation does not know, the statute is engaged.

Penalties and civil damages

• Criminal, § 99(C)(1). Interception is punishable by a fine of up to $10,000, imprisonment in the state prison for up to five years or in a jail or house of correction for up to two and a half years, or both.
• Civil, § 99(Q). A person whose communication was intercepted, disclosed or used can recover actual damages but not less than liquidated damages of $100 per day for each day of violation or $1,000, whichever is higher; punitive damages; and a reasonable attorney's fee and litigation costs.

The statute also covers disclosure and use. Sharing a secretly made recording of a candidate with a client or a hiring panel is a separate problem from making it.

Transcription tools and AI note-takers

A tool that turns the conversation into text is acquiring its contents with a device, so treat it the same as a recorder. The secrecy test makes accuracy of description important: telling a candidate "I'm just going to take some notes" while software transcribes every word is the kind of statement that could make a recording secret in substance, even if the candidate heard something. Name the tool and say what it does.

If the tool also analyzes or scores candidates, separate AI rules may apply depending on where the role is based. The summary is in AI hiring laws by state.

Candidates in Massachusetts, recruiters elsewhere

A recruiter in a one-party state calling a candidate in Massachusetts should not assume their own state's law is the only one that matters. Courts have taken different approaches to calls that cross state lines, from applying the stricter state's law to applying the law where the recording was made; the cases are in recording calls across state lines. Telling the candidate removes the question.

When a candidate records the interviewer

Section 99 applies to everyone, and Hyde was about a private individual recording public officials. A candidate who secretly records an interview with a Massachusetts interviewer is doing what the statute prohibits, just as an interviewer would be. Decide your policy on candidate recordings before anyone asks. If a candidate asks and you agree, make sure every interviewer knows before the conversation starts. If you suspect a candidate is recording without saying so, ask plainly and state your policy; do not let the question, or the answer, become part of the assessment.

If recordings were made without telling people

Change the practice from the next interview, then take advice before doing anything with the recordings you already hold. Deleting them may be the wrong move if a complaint or legal hold is in view, and continuing to use or share them carries its own risk under the disclosure and use provisions. Decide once, with counsel, and write the decision down.

A Massachusetts consent line

"Before we start: I'm going to [record / transcribe] this conversation with
[tool] so I have an accurate record for the [role] position. It's seen by
[who] and kept for [period]. If you'd rather I didn't, say so and I'll keep
it off and take notes by hand; it won't affect your application.
Is that OK with you?"

The fuller set, including a strict version that captures the candidate's answer on the record, is in the interview recording consent script.

Checklist

1. Announce any recording or transcription before it starts, to everyone present.
2. Describe the tool accurately.
3. Capture the notice and the answer, so knowledge can be shown later.
4. Repeat the notice when anyone joins.
5. Turn devices off for informal conversations, or say they are on.
6. Do not share a recording you are not sure was made openly.

Massachusetts' place among the other all-party states is in the two-party consent states table.